Talmadge

This is an appeal by plaintiffs from an order of the court granting defendants’ motion for a new trial. The action was instituted by plaintiffs to recover possession of certain mineral land, for an injunction restraining defendants from extracting ores, and for damages. The following facts were disclosed without conflict in the evidence: On the tenth day of October, 1898, the defendant St. John and others, prospecting for precious metals upon the public domain of the United States, discovered gold bearing rock in place, and, with the purpose of appropriating the same, erected at the point of discovery a prominent and substantial stone monument more than three feet high and more than two feet in diameter at the base, and posted thereon their preliminary location notice claiming fifteen hundred feet in an easterly direction along the course of the lead, and three hundred feet on each side, naming the claim the “Bjue and the Gold Mine.” In their preliminary notice they gave the date of discovery, the date of the location, and the county in which the claim was located. This notice was properly signed, and on the twenty-sixth day of October, 1898, was recorded in the office of the…